Straight to the Supremes? Not So Fast, Says DOJ on Health Care

Virginia Attorney General Ken Cuccinelli said on Thursday that he’d ask the U.S. Supreme Court to take a direct review of his constitutional challenge to President Obama’s health-care law.

But the Justice Department made clear on Thursday that it’s not too keen on the idea. A DOJ spokeswoman said the Supreme Court should follow its usual practice of letting an appeals court rule on Cuccinelli’s challenge first. Click here for Friday’s story over at Bloomberg.

The government’s approach has a couple potential benefits. For starters, an appellate court victory could shift the momentum back to the government. Currently, after Monday’s ruling, the momentum sits pretty squarely with those challenging the law. As Bloomberg notes, delaying things might also set the stage for a Supreme Court ruling only months before the 2012 presidential election.

As Bloomberg also notes (and we’ve noted as well), the odds are against Cuccinelli’s move. The Supreme Court has granted cases early only a handful of times in the last several decades, and typically when the justices are also considering a related case that’s been adjudicated by an appellate court.

The chances of the court agreeing to hear the case in the face of government opposition are “zero,” said Carter Phillips, a Supreme Court litigator at Sidley in Washington, D.C.

“I do not think the court will be inclined to decide this question without the benefit of having the views of at least one and probably more than one court of appeals on a very difficult question of constitutional law,” Phillips said.

Interestingly, the Justice Department might not have it so rough at the Fourth Circuit. Bloomberg points out that the court developed a reputation as one of the most conservative appellate courts in the 1990s, it’s not so conservative anymore. Of the court’s 14 active judges, eight were appointed by Democratic presidents and a ninth, Roger Gregory, was nominated first by President Bill Clinton and then by President George W. Bush.

Correction: An earlier version of this post incorrectly stated that Carter Phillips worked at Mayer Brown.

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